The Italian Constitutional court, by order no. 10844 on 4th April 2022, considered legitimate the refusal of the officer of civil status to record and/or recognize same-sex parents on birth certificates. This confirms the general Italian jurisprudential orientation, does not leave room for a new and less radical direction.
1. Background of the case
In Italy, access to medically assisted procreation techniques is allowed only in cases of sterility and infertility and for couples of different sexes as specified by article 4 paragraph 1 and Article 5 of law 40/2004, precluding access to same-sex couples.
Two women, united for a long time in a stable emotional relationship, decided to use one of the techniques of medically assisted procreation in Denmark, (where the law allows access to these techniques also to same-sex couples). When they came back to Italy, they asked the registrar to proceed with the indication of the birth certificate of both mothers, the one giving birth and the so-called intentional donor of ovules. However, the officer did not accept to proceed with such registration.
The refusal to proceed with the registration by the competent officer was appealed by the women, based on ex article 95 of Presidential Decree no. 396/2000 (which allows the rectification of a record of civil status or to oppose a refusal by the officer to carry out a transcription) to the Court of Piacenza. Yet, The Court of Piacenza rejected the appeal.
Then, a claim against such a decision was filed to the Court of Appeal of Bologna, which confirmed the decision in the first instance. At this point, the women decided to proceed by appealing to the Court of Cassation.
The Court of Cassation rejected all the reasons for the appeal, confirming the decision of the Courts. Furthermore, In the Court of Cassation recalled judgment no. 6383/2022, which also considered that it cannot be accepted the request of the two mothers (one as the mother who gave birth to the child and the other one as the ovule donator) as the Italian law excludes the use of medically assisted procreation techniques for same-sex couples (L. n. 40 of 2004, art. 4, paragraph 3).
2. The issue in the rest of the world
Even in other countries, the issue regarding the recognition of the intended mother and gestational mother as parents of the child born from artificial procreation practices is a much-debated topic. Only recently did the state of New York admit the recognition of both same-sex parents in the birth certificate, and even Ireland and Australia’s Legislative Assembly, in 2016, voted to allow same-sex adoption. Some other countries, instead, have still much stricter legislation regarding children born through medically assisted procreation techniques from same-sex couples.
3. The difficulty of finding a balance between the interests
The matter in question touches on issues of great sensitivity that leave the legislator with the arduous task of balancing the various interests at stake while respecting human dignity and safeguarding the interests of the (unborn) child. The principle of “the best interest of the child” must be taken as a reference for any decision in which minors are involved.
Article written by Giusy Profetto
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